State of Arizona v. Francisco L Encinas Valenzuela, Ariz. (2016)

7/25/2019 State of Arizona v. Francisco L Encinas Valenzuela, Ariz. (2016)

http://slidepdf.com/reader/full/state-of-arizona-v-francisco-l-encinas-valenzuela-ariz-2016 1/24

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA , Appellee,

v.

FRANCISCO L. ENCINAS VALENZUELA , Appellant.

No. CR-15-0222-PRFiled April 26, 2016

Appeal from the Superior Court in Cochise CountyThe Honorable Karl D. Elledge, Judge

No. CR-201300076AFFIRMED

Opinion of the Court of Appeals, Division Two237 Ariz. 307, 350 P.3d 811 (App. 2015)

VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, SolicitorGeneral, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,Diane Leigh Hunt (argued), Assistant Attorney General, Tucson, Attorneysfor State of Arizona

Mark F. Willimann (argued), The Law Office of Mark F. Willimann, LLC,Tucson, Attorney for Francisco L. Encinas Valenzuela

Bruce Washburn, Scottsdale City Attorney, Ken Flint, Assistant CityProsecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale

Jeffrey D. Bartolino (argued), Law Offices of Jeffrey D. Bartolino, Tucson;and David J. Euchner, Pima County Public Defender’s Office, Tucson,Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice





STATE V. VALENZUELAOpinion of the Court

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I. BACKGROUND

¶3 In reviewing the denial of a defendant’s motion to suppress,we consider only “evidence presented at the suppression hearing and viewthe facts in the light most favorable to sustaining the trial court’s ruling.”State v. Hausner , 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012).

¶4 In August 2012, a Department of Public Safety (“DPS”) officer

found Francisco Valenzuela asleep in the driver’s seat of his stopped truckwith the engine running and the vehicle in gear. After spotting an opencontainer of alcohol, detecting a strong odor of alcohol, and observing signs

that Valenzuela was impaired, the officer arrested Valenzuela on suspicionof DUI.

¶5 After taking Valenzuela to a police station, the officer read

Valenzuela an “admin per se” form, which provided, in part, that “Arizonalaw requires you to submit to and successfully complete tests of breath,blood or other bodily substance as chosen by a law enforcement officer todetermine alcohol concentration or drug content.” The officer stressed this“requirement” three additional times and warned that refusal would resultin a one-year suspension of Valenzuela’s driver’s license. (Although theofficer read from part of the form while testifying at the suppressionhearing, the form itself is not in the record.) Valenzuela cooperated and, inresponse to the officer’s questions, stated he understood the admonition and had no questions. He then submitted to breath and blood tests. Afterthe tests revealed that Valenzuela had an alcohol concentration (“AC”) inexcess of 0.20, the State charged him with five counts of aggravated DUI.

¶6 Valenzuela moved to suppress the test results. He argued

that he did not voluntarily consent to the tests, and the warrantless searchtherefore violated his Fourth Amendment rights. After conducting asuppression hearing at which only the DPS officer testified, the trial court

denied the motion, reasoning that the totality of the circumstances showedthat Valenzuela had voluntarily consented to the search. Based on theparties’ stipulated facts, the court subsequently dismissed three counts,convicted Valenzuela on the remaining counts, and imposed prisonsentences.




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¶7 In a divided decision, the court of appeals affirmed. State v.

Valenzuela, 237 Ariz. 307, 316 ¶ 35, 350 P.3d 811, 820 (App. 2015). The

majority examined the totality of the circumstances and concluded that thetrial court did not err in finding Valenzuela’s consent voluntary. Id. at 315¶ 31, 350 P.3d at 819. The dissenting judge recognized the need to generallyexamine the totality of the circumstances to determine the voluntariness ofconsent. Id. at 317 ¶ 39, 350 P.3d at 821 (Eckerstrom, C.J., dissenting).Relying on Bumper , he nevertheless reasoned that when the evidence showsthat police asserted lawful authority to search, “a court’s analysis hasreached its end; voluntary consent cannot be found as a matter of law.” Id.Because, in his view, the admonition asserts a claim of lawful authority, thedissenting judge concluded as a matter of law that Valenzuela could not

have voluntarily consented to testing. Id. at 318 ¶ 45, 350 P.3d at 822.

¶8 We granted Valenzuela’s petition for review because itpresents a recurring legal question of statewide importance. We have jurisdiction pursuant to article 6, section 5, of the Arizona Constitution andA.R.S. § 12-120.24.

II. DISCUSSION

¶9 We review the denial of a motion to suppress evidence for

abuse of discretion, considering the facts in the light most favorable tosustaining the ruling. State v. Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800,802 (2015). “An error of law committed in reaching a discretionaryconclusion may, however, constitute an abuse of discretion.” Busso-Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 5, 364 P.3d 472, 473 (2015) (citationomitted).

A. Fourth Amendment principles

¶10 The Fourth Amendment to the United States Constitution

protects individuals against “unreasonable searches and seizures,” and any

evidence collected in violation of this provision is generally inadmissible ina subsequent criminal trial. Mapp v. Ohio, 367 U.S. 643, 654 (1961) (internalquotation marks and citation omitted). A compelled blood draw or breathtest administered pursuant to § 28-1321 is a search subject to the FourthAmendment’s restrictions. See Butler , 232 Ariz. at 87 ¶ 10, 302 P.3d at 612(citing Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013)). A warrantlesssearch is per se unreasonable under the Fourth Amendment unless one of




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a few well-established exceptions applies. Arizona v. Gant, 556 U.S. 332, 338(2009).

¶11 One exception to the warrant requirement is a search

conducted with consent. See Schneckloth, 412 U.S. at 219. When the staterelies on consent to justify a warrantless search, as it does here, it “has theburden of proving that the consent was, in fact, freely and voluntarilygiven.” Id. at 222 (citation omitted). Whether consent is voluntary or “theproduct of duress or coercion, express or implied,” is a factual issueresolved by reviewing the totality of circumstances, including any “subtlycoercive police questions, as well as the possibly vulnerable subjective stateof the person who consents.” Id. at 227, 229; see also Butler , 232 Ariz. at 87

¶ 13, 88 ¶ 19, 302 P.3d at 612, 613. The state must prove voluntary consentby a preponderance of the evidence.1 Ariz. R. Crim. P. 16.2(b).

B. Application of admonishment given pursuantto § 28-1321, Arizona’s implied consent law

¶12 Valenzuela argues that, under Bumper , his consent to

providing blood and breath samples must be deemed involuntary becausehe consented only after the officer advised that Arizona law required himto submit to testing. The State responds, and the court of appeals majorityagreed, that Bumper is distinguishable, and the totality of the circumstancesevidences Valenzuela’s voluntary consent to the search. Valenzuela, 237Ariz. at 311 ¶¶ 12–13, 315 ¶ 31, 350 P.3d at 815, 819.

¶13 In Bumper , law enforcement officers went to a home where a

suspect lived with his grandmother. 391 U.S. at 546. After the grandmotheropened the door, an officer announced he had a warrant to search her home,she said, “Go ahead,” and the search unearthed evidence against thegrandson. Id. In a subsequent suppression hearing in the grandson’scriminal case, the prosecutor did not produce a warrant but relied solely onthe grandmother’s consent to justify the lawfulness of the search. Id. The

1 In State v. Cañez, this Court mistakenly stated that the state must prove

voluntary consent “by clear and positive evidence in unequivocal words orconduct expressing consent.” 202 Ariz. 133, 151 ¶ 53, 42 P.3d 564, 582 (2002)(quoting State v. Kananen, 97 Ariz. 233, 235, 399 P.2d 426, 427 (1965)). AfterKananen was decided, however, this Court promulgated Rule 16.2(b), whichreplaced the clear-and-positive-evidence standard.




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grandmother testified that “[the officer] said he was the law and had asearch warrant to search the house, why I thought he could go ahead. I

believed he had a search warrant. I took him at his word.” Id. at 547. Afterquoting this testimony, the Court relied on a line of older cases to hold thatthe prosecution failed in its burden to show that the grandmother freelyand voluntarily consented because the record demonstrated only her“acquiescence to a claim of lawful authority.” Id. at 548–49, 549 n.13 (citing Johnson v. United States, 333 U.S. 10, 13 (1948); Amos v. United States, 255 U.S.313, 317 (1921)). It reasoned that “[w]hen a law enforcement officer claimsauthority to search a home under a warrant, he announces in effect that theoccupant has no right to resist the search. The situation is instinct withcoercion—albeit colorably lawful coercion. Where there is coercion there

cannot be consent.” Id. at 550; see also Florida v. Bostick, 501 U.S. 429, 435(1991) (noting that the Fourth Amendment is not implicated when policerequest and obtain consent to search “as long as the police do not convey amessage that compliance with their requests is required”).

¶14 Valenzuela, the court of appeals dissent, and our dissenting

colleague read Bumper as holding that consent is necessarily involuntarywhenever police have asserted lawful authority to search, regardless ofother circumstances. See Valenzuela, 237 Ariz. at 317 ¶ 39, 350 P.3d at 821(Eckerstrom, C.J., dissenting); infra ¶ 41. Although Bumper did not directly

address whether other circumstances should be examined or a per se ruleapplied in deciding whether a consent was freely given or in acquiescenceto an assertion of lawful authority, it arguably rejected the former approachby not crediting the grandmother’s additional testimony that “I let themsearch, and it was all my own free will. Nobody forced me at all.” SeeBumper , 391 U.S. at 556 (Black, J., dissenting); see also Schneckloth, 412 U.S. at234 (noting that Bumper did not focus on the grandmother’s subjectivemindset). But another explanation is that the Court simply examined thecircumstances surrounding the consent objectively, as it has done insubsequently decided Fourth Amendment decisions, see Florida v. Jimeno,500 U.S. 248, 252 (1991) (scope of consensual search); Illinois v. Rodriguez,497 U.S. 177, 186 (1990) (third party consent); United States v. Mendenhall,446 U.S. 544, 554–55 (1980) (seizure), and concluded that the grandmotheracquiesced to an assertion of lawful authority even though she had noobjection to the officers executing on the warrant.

¶15

Schneckloth indicates that Bumper did not establish a per serule. The issue in Schneckloth concerned what the prosecution must show




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to demonstrate that a consent to search was given voluntarily. 412 U.S. at223. The Court held that “whether a consent to a search was in fact

‘voluntary’ or was the product of duress or coercion, express or implied, isa question of fact to be determined from the totality of all thecircumstances.” Id. at 227. Referring to its prior decisions to demonstratethe need for a “careful sifting of the unique facts and circumstances of eachcase,” the Court stated that “if under all the circumstances it has appeared thatthe consent was not given voluntarily—that it was coerced by threats orforce, or granted only in submission to a claim of lawful authority—then we havefound the consent invalid and the search unreasonable.” Id. at 233(emphasis added). Significantly, the Court cited Bumper, Johnson, and Amos for this principle, removing any doubt that it intended that courts make the

totality-of-circumstances inquiry in cases involving an assertion of lawfulauthority to search. See id. Indeed, Justice Marshall acknowledged thisintent in his dissent by criticizing the majority for including Bumper -likescenarios within the totality-of-circumstances inquiry. See id. at 283(Marshall, J., dissenting) (“We did not [in Bumper ] inquire into all thecircumstances, but focused on a single fact, the claim of authority, eventhough the grandmother testified that no threats were made. . . . It may bethat, on the facts of that case, her consent was under all the circumstancesinvoluntary, but it is plain that we did not apply the test adopted by theCourt today.”).

¶16 The Schneckloth Court’s discussion of Johnson, which Bumper

relied on, further supports our view. In Johnson, federal narcotics agentssmelled burning opium outside a hotel room and gained entry after oneagent knocked on the door, identified himself as a lieutenant, and thenstated, “I want to talk to you a little bit.” 333 U.S. at 12. The defendantopened the door, “stepped back acquiescently and admitted [the agents].”Id. The Court held that a subsequent search of the room violated the FourthAmendment because “[e]ntry to defendant’s living quarters . . . wasdemanded under color of office. It was granted in submission to authorityrather than as an understanding and intentional waiver of a constitutionalright.” Id. at 13. In Schneckloth, after characterizing Johnson’s use of the term“waiver” as a synonym for “consent search,” the Court stated that the Johnson Court “arrived at the conclusion that there had been no ‘waiver’ from an analysis of the totality of the objective circumstances—not from theabsence of any express indication of Johnson’s knowledge of a right torefuse or the lack of explicit warnings.” 412 U.S. at 243 n.31 (emphasisadded).




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¶17 Our dissenting colleague suggests that we are misreading

Schneckloth as displacing the Court’s holdings in Bumper , Johnson, and Amos.

See infra ¶ 39. That is incorrect. We merely reject the notion that whenevera law enforcement officer has asserted a claim of lawful authority to search,“a court’s analysis has reached its end” and consent must be deemedinvoluntary as a matter of law. See Valenzuela, 237 Ariz. at 317 ¶ 39, 350P.3d at 821 (Eckerstrom, C.J., dissenting). The Bumper line of cases survivesto invalidate any consent given only in acquiescence to an assertion of alawful authority to search. See, e.g., Florida v. Royer , 460 U.S. 491, 497 (1983)(plurality opinion) (citing Schneckloth and Bumper to note that the burden toprove consent is not satisfied by showing a mere submission to a claim oflawful authority); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979)

(relying on Bumper to hold that “‘consent’ given in the face of ‘colorablylawful coercion’” was invalid). We read Schneckloth and Bumper

harmoniously as requiring a court to examine the circumstancessurrounding an assertion of lawful authority to search to determinewhether the consent was sufficiently independent of the assertion toremove its taint. If not, the consent was not freely and voluntarily given.

¶18 Although it might be difficult to prove that consent given

after an assertion of lawful authority to search was nevertheless freelygiven, we should not preclude the possibility that it could happen. For

example, consent conceivably could be voluntary if, after an officer assertslawful authority to search, the officer retracts that assertion or an attorneyadvises that the search is not lawfully required before the subject of thesearch consents. See Kunzler v. Pima Cty. Superior Court, 154 Ariz. 568, 570,744 P.2d 669, 671 (1987) (holding that a person arrested for DUI has the rightto consult an attorney before taking a breath test when such consultationwould not delay or interfere with the investigation or test taking); State v.Brooks, 838 N.W.2d 563, 571 (Minn. 2013) (“The fact that [defendant]consulted with counsel before agreeing to take each [AC] test reinforces theconclusion that his consent was not illegally coerced” as “an attorneyfunctions as an objective advisor who could explain the alternative choicesto the driver”) (internal quotation marks and citation omitted). In suchcases, a court might find that any subsequently granted consent was notcompelled by the original assertion of authority.

¶19 Our dissenting colleague’s position is not far removed from

ours. He rejects an examination of other circumstances only when consentto a search “is immediately preceded by an assertion of lawful authority.”




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See infra ¶ 47. It is unlikely, but not impossible, that the state could meet itsburden to prove that consent is voluntary if given immediately after an

assertion of lawful authority to search. Cf. Hoover v. Beto, 467 F.2d 516, 521(5th Cir. 1972) (deciding Bumper did not invalidate consent givenimmediately after officer said he had a warrant to search a home when thedefendant, a criminal practice attorney, told officer that “his warrant wasnot necessary and to come on into his home and search wherever hewanted”); Earls v. State, 496 S.W.2d 464, 466, 468 (Tenn. 1973) (rejectingargument that Bumper provides “a blanket prohibition” and concludingthat consent provided after presentation of warrant was voluntary whenthe defendant threw it to the ground and stated, “You needn’t to havebrought a search warrant. You gentlemen are welcome to search anywhere

on my premises you want to search and take anything you find.”).Regardless, the Schneckloth Court rejected the type of per se rule the dissentproposes. See 412 U.S. at 229 (“The problem of reconciling the recognizedlegitimacy of consent searches with the requirement that they be free fromany aspect of official coercion cannot be resolved by any infallibletouchstone.”); see also United States v. Drayton, 536 U.S. 194, 207 (2002)(noting that “there are no per se rules” in deciding whether consent wasvoluntary).

¶20 Since Schneckloth, the Court’s declarations in other cases

involving voluntary consent to search bolster the view that a court mustexamine the totality of the circumstances even when officers assert a lawfulauthority to search. See Drayton, 536 U.S. at 207 (“[T]he Court has repeatedthat the totality of the circumstances must control” in deciding consent); Mendenhall, 446 U.S. at 558–59 (examining circumstances surroundingconsent to decide whether the district court properly found consentvoluntary rather than coerced). Other courts have also supported this view.See, e.g., United States v. Juarez, 573 F.2d 267, 273–74 (5th Cir. 1978) (notingBumper and Schneckloth, then examining the totality of circumstances toconclude that defendant gave voluntary consent by saying, “[t]hat’s fine”after officer said “Well, I am going to have to search you”); Byars v. State,533 S.W.2d 175, 180 (Ark. 1976) (“[W]e do not take Bumper to mean that anaccused can never be deemed to have consented to a search, if a searchwarrant had been obtained and the accused was aware of that fact. Rather,we consider that this question is determined by the particular facts presentwhen the consent is purportedly given.”). This Court has likewise focusedon the totality of the circumstances, including but not limited to an officer’sreading of an admin per se form, in determining whether a DUI suspect’s






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warrantless search or that other circumstances existed to dispel thecoerciveness of the admonitions before Valenzuela granted consent.

¶23 Our society expects, and unquestionably demands, thatpeople follow directives issued by law enforcement officers. Cf. Bumper ,391 U.S. at 549 n.14 (noting that acquiescence to a warrant demonstrates “anintention to abide by the law” and “show[s] a regard for the supremacy ofthe law”); see also Tom R. Tyler & John M. Darley, Building a Law-AbidingSociety: Taking Public Views About Morality and the Legitimacy of Legal Authorities into Account When Formulating Substantive Law, 28 Hofstra L. Rev.707, 716 (2000) (“Citizens regard it as appropriate for police officers to directcitizen behavior, and they follow these directives without requiring

explanation or justification.”). That is what Valenzuela did here.Consequently, Valenzuela’s “consent,” like the grandmother’s consent inBumper , was merely an acquiescence to a claim of lawful authority.

¶24 The State argues that Bumper is distinguishable because the

officer there effectively told the grandmother she had no right to resist thesearch by claiming to have a warrant, while the DPS officer here correctlyinformed Valenzuela that Arizona law required him to submit to testing orhis license would be suspended. The implied consent law, however,nowhere “requires” a DUI arrestee to submit to testing, and the DPS

officer’s admonition therefore did not mirror the statute. See A.R.S. § 28-1321(A), (B) (stating that although a DUI arrestee “gives consent” to testingof blood, breath, or other bodily substance, he “shall be requested to submitto and successfully complete” any such test) (emphasis added). But evenassuming that the officer accurately paraphrased the law, this distinction isimmaterial. The Bumper Court’s ruling turned on the grandmother’sacquiescence to the officer’s assertion of lawful authority to searchregardless of the truthfulness of the officer’s claim to possess a warrant. SeeBumper , 391 U.S. at 548–49 (holding that the prosecutor’s burden to provethat consent was voluntarily given “cannot be discharged by showing nomore than acquiescence to a claim of lawful authority”). The officer’s claimof authority to search was “instinct with coercion” whether or not heactually possessed a valid warrant. See. id. at 549 (“A search conducted inreliance upon a warrant cannot later be justified on the basis of consent if itturns out that the warrant was invalid.”); see also Lo-Ji Sales, 442 U.S. at 329(citing Bumper and holding that after a business’s agent was arrested andmade aware of “the presumed authority” of a search warrant, hiscompliance with officers’ requests could not be considered free and




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voluntary consent to a search); State v. Medicine, 865 N.W.2d 492, 498 ¶ 13(S.D. 2015) (holding that Bumper applies whether an officer honestly

represents authority or fabricates it). Consequently, whether the officerhere correctly recited Arizona’s implied consent law is immaterial.

¶25 The State also argues that Bumper is inapplicable because,

regardless of the DPS officer’s admonitions in this case, Valenzuelaconsented to the search pursuant to § 28-1321(A) by operating a vehiclewithin the state. Although § 28-1321 validly provides an arrestee’s consentto civil penalties for refusing or failing to complete requested tests, we haverejected the contention that the implied consent law operates toprospectively provide consent to a search for Fourth Amendment purposes.

See Butler , 232 Ariz. at 88 ¶ 18, 302 P.3d at 613 (“[I]ndependent of § 28-1321,the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood draw.”); Carrillo, 224 Ariz. at 463 ¶ 1, 232 P.3d at1245 (interpreting § 28-1321 to require either an arrestee’s express consentor a warrant before an officer can administer a test). According to the State,however, the United States Supreme Court suggested in McNeely thatimplied consent laws validly require arrestees to submit to blood draws andare sufficient to satisfy the consent exception to the warrant requirement,unless the arrestee withdraws consent.

¶26

The State misreads McNeely. The issue there was whether thedissipation rate of alcohol in the bloodstream constitutes an exigency that justifies warrantless searches in all drunk-driving cases. 133 S. Ct. at 1556.The Court rejected a per se exigency exception and held that “[w]hether awarrantless blood test of a drunk-driving suspect is reasonable must bedetermined case by case based on the totality of the circumstances.” Id. at1563. In responding to Missouri’s argument that requiring a warrant todraw blood would undermine efforts to combat drunk-driving, the Courtpointed out that states “have a broad range of legal tools to . . . secure [AC]evidence without undertaking warrantless nonconsensual blood draws.”Id. at 1566 (plurality opinion). As one example, the Court noted that all

states “have adopted implied consent laws that require motorists . . . toconsent to [AC] testing if they are arrested,” and such laws imposesignificant consequences, such as license suspension, when an arresteewithdraws consent. Id. The Court did not suggest, however, that impliedconsent laws supply an arrestee’s constitutionally valid consent to awarrantless search. From the context of the discussion, we read the Court’sreference to implied consent laws as meaning that these laws likely




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convince many drivers to give consent rather than suffer the statutoryconsequences for not doing so, thereby sparing law enforcement the need

to secure a warrant. See id.

¶27 The court of appeals majority distinguished Bumper because,

unlike the grandmother there, Valenzuela supposedly knew he couldrefuse consent. Valenzuela, 237 Ariz. at 311 ¶ 13, 350 P.3d at 815. It reasonedthat § 28-1321 permits a driver to refuse a warrantless search, and the DPSofficer here gave Valenzuela that choice by informing him that a refusalwould result in a civil penalty and prompt the officer to seek a warrant tocompel testing. Id. We disagree. The officer’s testimony is unclear whetherhe provided this information to Valenzuela. But even if he did so, he

effectively asked Valenzuela to either follow Arizona law (submit totesting) or violate Arizona law (refuse to submit to testing). ThatValenzuela might have been informed of the consequences for refusal doesnot alter the fact that the officer coerced Valenzuela’s consent by repeatedlytelling him that Arizona law “required” him to submit to testing, implyingthat he had no legal right to refuse.

¶28 We do not hold today that § 28-1321 violates the Fourth

Amendment or that officers must cease advising arrestees about the law’srequirements and the civil consequences for refusal.2 See Campbell v.

Superior Court, 106 Ariz. 542, 554, 479 P.2d 685, 697 (1971) (finding “nomerit” to the argument that Arizona’s implied consent law violates theFourth Amendment). But officers must inform arrestees in a way that doesnot coerce consent by stating or implying that officers have lawfulauthority, without a warrant, to compel samples of blood, breath, or otherbodily substances.

¶29 A law enforcement officer can invoke the implied consent lawwithout infringing on an arrestee’s Fourth Amendment rights by followingthe procedure set forth in § 28-1321(B). After making a DUI arrest, theofficer should ask whether the arrestee will consent to provide samples of

blood, breath, or other bodily substances for testing. If the arresteeexpressly agrees and successfully completes testing, the officer need not

2 The Supreme Court is currently considering whether, in the absence of awarrant, a state may criminalize a person’s refusal to submit to a test todetect a person’s AC. See Bernard v. Minnesota, 136 S. Ct. 615 (2015);Birchfield v. North Dakota, 136 S. Ct. 614 (2015).




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advise the arrestee of the statutory consequences for refusing consent. Theofficer must, however, advise the arrestee before testing that the outcome

of the tests may result in the penalties set forth in § 28-1321(B)(1) and (2). Ifthe arrestee refuses to consent to testing or fails to successfully complete thetests, the officer should advise the arrestee of the consequences for refusalor incomplete testing as provided in § 28-1321(B), and then ask againwhether the arrestee will consent to testing. Although this choice “will notbe an easy or pleasant one for a suspect to make,” this difficulty does notmake the decision coerced. South Dakota v. Neville, 459 U.S. 553, 564 (1983)(considering Fifth Amendment challenge to admission in evidence ofrefusal given in response to implied consent admonition). If the arresteeagain refuses to agree to testing or fails to successfully complete testing, a

test must not be given unless the officer secures a search warrant, exceptthat the officer may validly obtain a sample of blood or other bodilysubstances taken for medical purposes, A.R.S. §§ 28-1321(D)(1), -1388(E).Alternatively, the state might revise its implied consent admin per se formto mirror one used in South Dakota, which provides the arrestee with a clearchoice whether to submit to testing or refuse consent. See Neville, 459 U.S.at 555 n.2.

¶30 In sum, we hold that the State failed to carry its burden to

show by a preponderance of the evidence that Valenzuela freely and

voluntarily consented to providing samples of his blood and breath. Byadvising Valenzuela after he was arrested and detained that Arizona lawrequired him to submit to testing, the officer invoked lawful authority tocompel consent. Because nothing in the suppression hearing record dispelsthe coercive implication of the officer’s repeated admonition, the trial courterred by finding that Valenzuela had voluntarily consented to the searchand then denying the motion to suppress the test results on that basis. Cf. Medicine, 865 N.W.2d at 500 ¶ 17 (holding consent to blood drawinvoluntary when, among other circumstances, it was given after officerinformed arrestee that South Dakota law provides that driversautomatically consent to blood draws).

C. Good-faith exception to the exclusionary rule

¶31 The State alternatively argues, as it did at the suppression

hearing, that the good-faith exception to the exclusionary rule applies, andthe trial court therefore properly denied the motion to suppress. Theexclusionary rule, which allows suppression of evidence obtained in




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violation of the Fourth Amendment, is a prudential doctrine invoked todeter future violations. Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419,

2426 (2011). “Exclusion is ‘not a personal constitutional right,’ nor is itdesigned to ‘redress the injury’ occasioned by an unconstitutional search.”Id. (citation omitted). Therefore, when law enforcement officers “act withan objectively reasonable good-faith belief that their conduct is lawful,”deterrence is unnecessary and the exclusionary rule does not apply. Id. at2427–28 (internal quotation marks and citation omitted); see also A.R.S. § 13-3925 (codifying good-faith exception to the exclusionary rule).

¶32 The good-faith exception applies here. Well before the DPS

officer advised Valenzuela from the admin per se form, this Court

characterized Arizona’s implied consent law as “requir[ing] a person tosubmit to a chemical test of his blood, [breath] or urine if arrested for [DUI]or face a . . . suspension of his driver’s license.” Campbell, 106 Ariz. at 546,479 P.2d at 689. In State v. Brito, 183 Ariz. 535, 538–39, 905 P.2d 544, 547–48(App. 1995), the court of appeals rejected an argument that the same adminper se form read to Valenzuela incorrectly advised that Arizona law requires submission to testing before asking for consent. The court concluded thatthe admonition’s language conformed to our decision in Campbell and“does not misstate the law,” and that “a licensed driver does not have anunfettered right to refuse to take a blood alcohol test or breath test upon the

request of a law enforcement officer”). See also Jefferson Lankford, ArizonaDUI: A Manual for Police, Lawyers, and Judges 66, 133 (2001-2002 ed.) (statingthat “[t]he driver has the power but not the right to refuse testing under the implied consent law” and including an “admin per se” form with languageidentical to that used by the DPS officer here). Pursuant to a then-existingstatutory mandate, the court in Brito also reviewed the record forfundamental error, which would have encompassed the court’s completecase review for any prejudicial Fourth Amendment violations resultingfrom use of the admonition, but found none. 183 Ariz. at 539, 905 P.2d at548.

¶33

We today hold that consent given solely in acquiescence tothe admonition used here and in Brito is not free and voluntary under theFourth Amendment and cannot excuse the failure to secure a warrant. Butat the time of events here, the DPS officer followed binding precedent thathad sanctioned use of the admonition read to Valenzuela, and the good-faith exception therefore applies. Cf. Davis, 131 S. Ct. at 2429 (“An officerwho conducts a search in reliance on binding appellate precedent does no






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exclusionary rule applies. The trial court therefore properly denied themotion to suppress, albeit for a different reason. Cf. State v. Roseberry, 237

Ariz. 507, 508 ¶ 7, 353 P.3d 847, 848 (2015) (“We will affirm a trial court’sdecision if it is legally correct for any reason.”).

III. CONCLUSION

¶36 We vacate the court of appeals’ opinion and affirm

Valenzuela’s convictions and resulting sentences.



STATE V. VALENZUELACHIEF JUSTICE BALES, Concurring in Part and Dissenting in Part

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Bales, C.J., concurring in part and dissenting in part.

¶37 I agree that Valenzuela did not voluntarily consent to thewarrantless search, and I therefore specially concur in parts I, II.A, and II.Bof the majority opinion. In two respects, however, I disagree with themajority’s analysis. First, I would hold that a person cannot, as a matter oflaw, be deemed to have voluntarily consented by acquiescing when policeassert a search is lawfully authorized (or, as the police stated here,“required” by law). Second, I would not address, in the first instance, theapplication of the good-faith exception to the exclusionary rule, but if I hadto reach the merits, I would hold that the exception does not apply.

Accordingly, I respectfully dissent from parts II.C and III.

I.

¶38 Consistent with Schneckloth, the majority recognizes that the

voluntariness of consent to a search is determined by the “totality of thecircumstances.” Supra ¶ 11. In most cases, this inquiry is a factualdetermination that considers various aspects of the setting in which a searchoccurs, the conduct of law enforcement officers, and the characteristics ofthe person who submits to the search. See Schneckloth, 412 U.S. at 226–27,

229; Butler , 232 Ariz. at 87–88, ¶¶ 13, 20, 302 P.3d at 612-13.

¶39 “Where there is coercion there cannot be consent.” Bumper ,

391 U.S. at 550. Bumper and earlier Supreme Court decisions recognize thatan assertion of lawful authority is inherently (although perhaps lawfully)coercive. Thus, if submission to a search is immediately preceded by suchan assertion, consent cannot be deemed voluntary. See id. Morecolloquially, these cases stand for the principle that people do not“voluntarily” consent to searches when they do what the police say the lawrequires them to do. This “lawful authority principle” is not displaced bySchneckloth.

¶40 The lawful authority principle is clearly illustrated by Bumper ,

where the Court held that a homeowner’s consent was involuntary solelybecause it was immediately preceded by an officer’s assertion that he had awarrant. Id. at 548–49. Bumper gave no weight to other circumstances ofthe search. The homeowner was never placed in custody or threatened; shetold the officers to “go ahead and look all over the house.” Id. at 556 (Black,




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J., dissenting). She testified that she “had no objection to [the police]

making a search,” she allowed the search “entirely under her own freewill,” and she was not forced “at all.” Id.

¶41 Despite the circumstances suggesting the homeowner was

not pressured to submit, the Court in Bumper treated as dispositive the factthat the search was immediately preceded by an assertion of lawfulauthority by the police. Because such an assertion is inherently coercive , id.at 550, any succeeding “consent” cannot be “freely and voluntarily given.”Id. at 548–49. The Court effectively held that consent, in thesecircumstances, cannot, as a matter of law, be deemed voluntary.

¶42

Bumper comports with prior Supreme Court decisions. In Johnson v. United States, 333 U.S. 10 (1948), the police, having traced thesmell of burning opium to a hotel room, gained entry by knocking on thedoor, identifying themselves, and telling the occupant that they “want[ed]to talk to [her] a little bit.” Id. at 12. The occupant stepped back“acquiescently” and admitted the officers. Id. Rejecting any suggestion thatthe occupant had consented to the entry, the Court observed that it “wasdemanded under color of office” and “granted in submission to authority.”Id. at 13. In ruling the entry was nonconsensual, the Court did not consider

other circumstances of the search.

¶43

Johnson in turn cited Amos v. United States, 255 U.S. 313 (1921),where officers went to a home seeking evidence of illegally distilledwhiskey. Id. at 315. The officers gained entry by telling the suspect’s wifethat they were “revenue officers that had come to search the premises ‘forviolations of the revenue law.’” Id. Without otherwise assessing thecircumstances, the Court noted that any contention that the search had beenconsensual “cannot be entertained,” because the officers had demandedadmission “to make a search . . . under government authority.” Id. at 317.Foreshadowing Bumper , the Court noted that “it is perfectly clear that underthe implied coercion here presented,” the wife could not voluntarilyconsent to the search (which the Court phrased as waiving the husband’sconstitutional rights). Id.

¶44 We should read Schneckloth as preserving the lawful authority

principle. Most significantly, the principle respects Fourth Amendmentvalues by recognizing that we expect people to comply with police




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assertions of lawful authority and that acquiescence in such assertions

should not be viewed as “freely and voluntarily” given consent.

¶45

Schneckloth, moreover, quoted Bumper ’s reasoning approvingly and otherwise indicates the Court did not intend to displaceits earlier case law. Citing Bumper , Johnson, and Amos, the Court noted “ifunder all the circumstances it has appeared that the consent was not givenvoluntarily—that it was coerced by threats or force, or granted only insubmission to a claim of lawful authority—then we have found the consentinvalid and the search unreasonable.” 412 U.S. at 233–34. This statementshould not be read as modifying the Court’s prior decisions, but instead as

recognizing that the lawful authority principle complements the “totalityof the circumstances” test. Immediately after making this statement,Schneckloth explained that the Court had not found valid consent in Bumper,noting that “(w)hen a law enforcement officer claims authority to search ahome under a warrant, he announces in effect that the occupant has no rightto resist the search. The situation is instinct with coercion—albeit colorablylawful coercion. Where there is coercion there cannot be consent.” Id. at234 (quoting Bumper , 391 U.S. at 550).

¶46

Schneckloth did not itself involve an assertion of lawful

authority to conduct a search, but instead whether the prosecution mustshow that a person knew he or she had a right to refuse in order to establishthat consent was voluntarily given. 412 U.S. at 223-24. In holding that suchknowledge is not a prerequisite, Schneckloth noted that this factor was notconsidered in Bumper , Johnson, or Amos. Id. at 234. But recognizing thatthese decisions did not require the prosecution to show a personsubjectively knew they could refuse to submit, or that voluntarinessdepends on the “totality of the circumstances,” is not inconsistent with thelawful authority principle. See id. at 243 n.31 (noting that Johnson and Amosturned on objective circumstances of search rather than absence ofknowledge of right to refuse).

¶47 Indeed, Schneckloth itself noted “Our decision today is anarrow one. We hold only that when the subject of a search is not incustody and the State attempts to justify a search on the basis of his consent,the Fourth and Fourteenth Amendments require that it demonstrate thatthe consent was in fact voluntarily given, and not the result of duress orcoercion, express or implied.” 412 U.S. at 248. Although “[v]oluntariness




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is a question of fact to be determined from all the circumstances,” id. at 248–

49 , the Court in Schneckloth also restated its earlier observation in Bumperthat assertions of lawful authority are inherently coercive. The best way toreconcile the Supreme Court’s statements is to recognize that consent to asearch cannot, as a matter of law, be deemed voluntary when it isimmediately preceded by an assertion of lawful authority.

¶48 In rejecting this proposition, the majority identifies two

hypotheticals. Supra ¶ 18. The first is when an officer retracts an assertionof lawful authority before a person accedes to a search. This hypotheticaldoes not argue against the lawful authority principle. The principle rests

on the inherent coerciveness of the assertion of lawful authority; it does notapply when the assertion is withdrawn before a person assents to a search.

¶49 The second hypothetical – where an officer’s assertion of

authority is contradicted by a private third-party before the person submitsto a search – also does not support rejecting the lawful authority principle.One might conclude that the inherently coercive nature of the officer’sassertion cannot be dispelled by unofficial, third-party statements. To holdotherwise would require finding that a person can completely ignore theofficer’s claimed authority and “freely” submit after a third party tells them

they need not do so. None of the cases cited by the majority, supra ¶ 18,involve a third party contradicting an officer’s assertion of authority. Norneed we address that issue here: the officer’s assertion immediatelypreceded Valenzuela’s assent to the search.

¶50 The majority also implicitly recognizes that the Schneckloth

“totality test” must apply differently when, as is true here, an officer hasasserted lawful authority to conduct a search. The majority – like theSupreme Court in Bumper and Johnson – does not find significant variouscircumstances that generally apply under a “totality” test, but instead givesdispositive weight to the officer’s repeated assertions of lawful authority.Compare ¶ ¶ 22–23 (concluding that Valenzuela’s “consent,” like thegrandmother’s consent in Bumper , was involuntary because nothingdispelled the coercive nature of the assertion of authority) with Valenzuela,237 Ariz. at 315 ¶¶ 30-31, 350 P.3d at 819 (noting that various factors,including suspect’s demeanor, emotional state, education, and intelligence,should be considered); cf Schneckloth, 412 U.S. at 227, 249 (noting that




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suspect’s knowledge of right to refuse generally is a factor to be

considered).

¶51 A better path to the majority’s conclusion would be holding

that consent cannot, as a matter of law, be deemed voluntary when it isimmediately preceded by a claim of lawful authority. Reaffirming thislawful authority principle would remain faithful to Supreme Courtprecedent while protecting Fourth Amendment values and providingclearer guidance for the public, law enforcement, and our courts.

II.

¶52 The majority, recognizing that Valenzuela’s consent was

involuntary, goes on to hold that the evidence obtained from the unlawfulsearch is admissible under the good-faith exception to the exclusionaryrule. ¶¶ 30–32. The good-faith exception was not addressed by the trialcourt or the court of appeals.

¶53 Application of the good-faith exception can involve

complicated considerations of the social costs and deterrent benefits fromexcluding the evidence at issue. See, e.g., Herring v. United States, 555 U.S.

135, 141 (2009) (discussing whether to apply the good-faith exception to theexclusionary rule requires analyzing the benefits of deterrence against thesocial costs of excluding evidence in any particular case). The parties didnot discuss the exception in their briefs – indeed, the State merely affordedthe exception a passing mention in a footnote. Given the lack of briefing, Iwould decline to address the good-faith exception and instead remand tothe trial court to consider, in the first instance, whether the issue has beenpreserved and, if so, how it should be resolved.

¶54 On the merits, I disagree with the majority’s analysis. Davis

states that when law enforcement officers “act with an objectively

reasonable good-faith belief that their conduct is lawful,” deterrence isunnecessary and the exclusionary rule does not apply. 131 S. Ct. at 2427–28. But the rule serves an important deterrence purpose when there iseither deliberate, reckless, or grossly negligent conduct or “recurring orsystemic negligence.” Davis, 131 S. Ct. at 2428 (citing Herring, 555 U.S. at144).




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¶55 In this case, the officer’s use of an MVD admin per se form

inaccurately telling people that they are required to submit to tests reflectsat least “recurring or systemic negligence.” Id. In applying the good-faithexception to the exclusionary rule, courts expect that “[r]esponsible law-enforcement officers will take care to learn what is required of them” underbinding precedent and “conform their conduct to these rules.” Id. at 2429(internal quotation marks and citations omitted).

¶56 More than five years ago, in Carrillo v. Houser , 224 Ariz. 463,232 P.3d 1245 (2010), this Court considered whether Arizona’s impliedconsent statute, A.R.S. § 28-1321 – the same statute at issue today –

authorizes law enforcement officers to administer warrantless tests withouta person’s express consent. 224 Ariz. at 463 ¶ 1, 232 P.3d at 1245.Recognizing that the underlying statutes allow people to refuse to submitto testing, id. at 465 ¶ 11, 232 P.3d at 1247, we held that an officer mustobtain a warrant or express consent in order to administer a test. Id. at 466¶¶ 18, 19, 232 P.3d at 1248.

¶57

Carrillo establishes that police officers were misstating the lawwhen they admonished arrestees, based on the MVD form, that they arerequired to submit to tests. The misstatement does not occur just once. The

form states that “Arizona law requires you to submit” to a warrantless test,and repeats that “requirement” under Arizona law no fewer than threemore times. To underscore the point, the form concludes by stating “Youare, therefore, required to submit to the specified tests.” Carrillo wasdecided in 2010. Insofar as law enforcement officers have continued tocoercively admonish DUI suspects that “Arizona law requires” submissionto warrantless tests, they have ignored this Court’s binding precedent.

¶58 Given Carrillo, I cannot accept the majority’s conclusions that

“binding precedent” sanctioned the admonition given to Valenzuela and“the good-faith exception therefore applies.” Supra ¶ 33. As a decision bythis Court, Carrillo is the binding authority regarding the meaning of theimplied consent statute, and its legal force does not depend on ourexpressly singling out inconsistent lower court decisions or administrativepractices. The majority’s reliance on State v. Brito, 183 Ariz. 535, 539, 905P.2d 544, 548 (App. 1995), is particularly misplaced, given that Carrilloexpressly rejects Brito’s assertion that Arizona’s implied consent statuterequires suspects to submit to testing. Cf. Carrillo, 224 Ariz. at 466 ¶ 18, 232




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P.3d at 1248 (noting that “the statute has always provided that an arrestee

may refuse to submit to tests but that doing so will result in the loss of thearrestee’s license”). At the least, after Carrillo the admonition was ofdubious legality, and Davis should not apply.

¶59 Extending Davis to apply the good-faith exception when thelaw is unsettled incentivizes, rather than deters, unconstitutional behavior.See Davis, 131 S. Ct. at 2435 (Sotomayor, J., concurring). “Official awarenessof the dubious constitutionality of a practice would be counterbalanced byofficial certainty that, so long as the Fourth Amendment law in the arearemained unsettled, evidence obtained through the questionable practice”

would not be excluded. Id. (internal quotation marks and citationsomitted). Cf. Emily Ward, Note, From Pen to Patrol: How Arizona LawEnforcement Applied Carrillo v. Houser , 53 Ariz. L. Rev. 345 (2011) (discussinginitial responses by law enforcement to Carrillo).

¶60 Here, the police incorrectly told drivers that they werelawfully required to submit to tests, even though our 2010 decision inCarrillo recognized that “the statute has always provided that any arresteemay refuse to submit.” 224 Ariz. at 466 ¶ 18, 232 P.3d at 1248. Applyingthe good-faith exception here effectively rewards the systemic failure to

revise the MVD admonition to accurately state the law. That result conflictswith the reasoning of Davis and the goals of the exclusionary rule. Thus, Irespectfully dissent from parts II.C and III of the majority opinion.

Documents

State of Arizona v. Francisco L Encinas Valenzuela, Ariz. (2016)